Bryan Lidoshi Alias Bany v Republic

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7. Having looked at the Appellant’s Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that all the grounds of appeal were related and challenged the sentence imposed on him. The issue for determination before this court was whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/ or warranted. He also sought that this court consider the provision of Section 333(2) of the Criminal Procedure Code. 8. This court noted that although the Appellant submitted partly on his conviction, he was clear right from the beginning of his submissions that he had lodged an appeal not against his conviction but on his sentence only. He placed reliance on the cases of Petition No E017 of 2021 where it was held that there must be a reasonable proportionality between the sentence imposed and the circumstances of the crime committed and Francis Karioko Muruatetu & Another vs Republic[2017]eKLR where it was held that those who were convicted of Sexual Offences Act and whose sentences were passed on the basis that the trial court had no discretion but to impose the said mandatory minimum sentences were at liberty to petition the high court for order or re-sentencing in appropriate cases. 9. He argued that this was a case where the Trial Court ought to have exercised discretion during sentencing. He relied on the case of Shadrack Kipchoge Kogo vs Republic Criminal Appeal No 253 of 2003 (eKLR citation not given) where it was held that sentence was essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence the Trial Court took into account an irrelevant factor or that a wrong principle was applied. 10. He asserted that the Trial Court disregarded his mitigating factors. He argued that the Trial Court ought to have been lenient as he was a first offender since the law states that harsh and excessive sentences should not be imposed to first offenders. He submitted that the period he spent in custody during trial was not taken into account pursuant to Section 333(2) of the Criminal Procedure Code and the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR. 11. He further relied on several cases among them the Muruatetu Case (Supra) where it was held that the mandatory nature of mandatory minimum sentenced deprives the courts their legitimate jurisdiction to exercise discretion. He pleaded for the court’s leniency. 12. On its part, the Respondent cited Section 8(3) of the Sexual Offences Act No 3 of 2006 and placed reliance on the case of Francis Karioko Muruatetu & Another vs Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] KLR where it was clarified that the decision in Muruatetu 2017 could not be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences were inconsistent with the Constitution but that the said decision only applied in respect of sentences of murder under Section 203 and 204 of the Penal Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3783/eng@2026-03-18 2

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13. It further referred to Section 329 of the Criminal Procedure Code and asserted that the Trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. It further relied on the case of Benard Kimani Gacheru vs Republic[2002]eKLR where it was held that sentencing was a matter that rested in the discretion of the trial court and that an appellate court would not interfere with sentence unless that sentence was manifestly excessive in the circumstances of the case or that the trial court overlooked some material factor or took into account some wrong material or acted on a wrong principle. 14. It also relied on the cases of Republic vs Jagani & Another (2001) KLR 590 where it was held that the purpose of sentence was to assist in rehabilitation of the offenders and Supreme Court Petition No E018 of 2023 Republic vs Joshua Gichuki Mwangi (eKLR citation not given) where it was held that although sentencing was an exercise of judicial discretion, it was parliament and not judiciary that set the parameters of sentencing for each crime. It was emphatic that the sentence meted out by the Trial Court was lawful and this court should not interfere with the same. 15. It did not oppose the Appellant’s prayer under Section 333(2) of the Criminal Procedure Code. It relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra) where it was held that courts were obliged to take into account the period the accused spent in custody during trial while sentencing them. 16. It was difficult to understand the Appellant’s submissions because while he admitted having been with the Complainant, JA (hereinafter referred to as “PW 1”), he also stated that the investigations No 233825 PC Evelyne Akongo (hereinafter referred to as “PW 5 ”) carried out were shoddy and shaky and could not have secured a sentence of twenty (20) years imprisonment. As it was apparent from his Written Submissions and Grounds of Appeal that he focused on the merit or otherwise of the sentence, this court did not find it necessary to analyse the evidence that was adduced by the Prosecution witnesses. 17. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: “ A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” 18. This court could not therefore fault the Trial Court for having sentenced him to twenty (20) years imprisonment as that was lawful. 19. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 20. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3783/eng@2026-03-18 3

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21. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. 22. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 23. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:“ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 24. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… Time already spent in prison by the convict…” 25. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic(Supra). 26. A perusal of the Charge Sheet indicated that the Appellant was arrested on 2nd May 2020. He was released on bond on 2nd September 2020. He absconded court several times and was remanded on 2nd December 2020. He was sentenced on 25th October 2022. 27. A perusal of the proceedings showed that the Trial Court did not take into account the period that the Appellant spent in custody during trial. It was this court’s view that the said period ought to have been taken into account in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 28. In the premises, Grounds of Appeal No (1), (2), (3), (4) and (5) of the Petition of Appeal were not merited and the same be and are hereby dismissed. On the other hand, Ground of Appeal No (5) was merited and the same be and is hereby allowed. Disposition 29. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 10th July 2024 and filed on 30th July 2024 was not merited save for the ground under Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). His conviction and sentence be and are hereby upheld as they were both safe. 30. For the avoidance of doubt, the period that the Appellant spent in custody between 2nd May 2020 and 1st September 2020 and between 2nd December 2020 and 24th October 2022 be and is hereby taken into account in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) while computing his sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3783/eng@2026-03-18 4

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31. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 18TH DAY OF MARCH 2026 J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3783/eng@2026-03-18 5

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